Sincerest Form

[cdh]

Applying copyright to either food or clothing is just another step towards a society in which everybody is constantly violating the law. That is not a society in which I want to live.

Think you've got privacy in your home? Not so much if anybody who didn't see the right label on your coat can swear out a complaint and get a search warrant issued against you for the contraband in your closet. Remember that infringement "for commercial advantage or private financial gain" is not just a civil action but also a criminal violation. Want to wreak havoc on a competing restaurant? You've got the law on your side now, whether the competitor actually did copy from you or not, so long as there is something arguably derivative of your work, you're not lying when you tell Da Man that somebody is infringing on your copyrights. The law coming in to find out is a sure way to wreck a kitchen's productivity. Frankly, I'm astonished that copyright litigation is not a more common method of legally demolishing ex-employees, competitors, etc. I've seen several cases litigated where copyright claims could easily have been inserted, but they weren't... mostly because lawyers just don't think to do so.

While the statute may appear open ended, treating it that way is, I reiterate, absolutely insane. The courts have reigned it in before by inventing the First Sale Doctrine out of whole cloth... the sort of activist judging that is so unpopular today. I'd certainly not want to live in a world where used book shops were forbidden...

Copyright in an out of control monster that needs to be reigned in before anything else gets anschlussed into its co-prosperity sphere.

Edited April 17, 2006 by cdh (log)

[Fat Guy]

Copyright in an out of control monster that needs to be reigned in

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There are certainly some folks who believe this, however having them in this conversation is like trying to talk about steak cookery with a radical vegan: you're trying to figure out how to get a nice char on the steak, and the vegan is screaming about how eating steak is immoral.

[nathanm]

An excellent analogy!

Let me further suggest that we don't need to reprise the full debate on copyright law here in this forum.

With respect to food items, copyright protection is only peripherally involved at present. Future extensions of copyright to fashion or food may occur, but we don't need to have a battle about them now because they are entirely hypothetical.

[cdh]

Where am I making any shrill moral judgments? I just believe that your radical copyright expansionist proposals (you get stuck with the vegan role in this discussion) will pile huge difficulties on ordinary people for the sake of giving a cookie to the chefs you happen to like. Not moral, just logical and logistical.

I'm not even opposed to giving them a cookie... I'm just opposed to your preferred method of doing so.

Edited April 17, 2006 by cdh (log)

[Vadouvan]

Not that I agree with it but the bread knife cuts both ways.....

A lot of "prominent" american chefs are ripping off foreign dishes too.

Rather than waste already exhausted legal infrastructure on copyrighting plates of food, I just think the obvious shame generated by such blatant copying is enough punishment.

[Fat Guy]

Just 455 posts ago, I felt the same way. The problem is that not enough folks take shame seriously. The cries of "there's no such thing as culinary plagiarism" and "you can't copyright a dish" have convinced me that, unless it is possible to copyright a dish, not enough people will care about copying. Our first expose made it into a few papers, our second was ignored by the press and by the culprit. By the third time, people will just yawn. And very little of this really trickles down to the general dining public. So, unfortunately, I think we need more than the threat of shame -- this is a situation where we need the law.

[eipi10]

I think it is possible that the photographs on the Australian site are in fact copyright violations. One restaurant creates a work of visual art and fixes it in a tangible medium of expression by photographing it. It is not at all clear that another restaurant can recreate the same work and photograph it. Outside the culinary context, such recreation and photographing certainly invokes copyright violation issues. I don't think the fact that the food and method of creating it aren't copyrightable changes this analysis for the photography.

Edited April 18, 2006 by eipi10 (log)

[cdh]

Go back to the beginning of this thread. The photographs are clearly different enough not to be copyright violations. The angles are different in every picture... Not one of them looks like even at attempt to copy the original picture. And you can't copyright uncopyrightable subject matter by taking a picture of it.

Edited April 18, 2006 by cdh (log)

[fabienpe]

This is not a new problem: see Coca-Cola versus Pepsi. I'm sure there must be previous cases.

But how can you be sure that Aliena did not copy Interlude or, in fact, any other restaurant? Maybe someone in a small restaurant who does not benefit from the media hype has been doing this for a while... I don't know what the caviar dish is about but it strongly reminds me the Robuchon recipe with caviar and celeriac purée... which I found at the French Laundry. The inventor of purées could complain that Alinea has used their techniques, etc. The whole debate can becomes quickly ludricrous and I do not wish the art of cooking to become like the computing or biology (where you can patent absolutly anything) or the book business.

You can order books from Amazon, download software from Microsoft. You cannot fedex a dish you need to go to travel to the restaurant to enjoy the food. Whether the dish was invented by X or Z, why should we care ?

Copying or imitation has been stimulating innovation in the cooking industry for hundreds of years why would we want to involve expensive lawyers now?

Fabien

[sizzleteeth]

You cannot fedex a dish you need to go to travel to the restaurant to enjoy the food. Whether the dish was invented by X or Z, why should we care ?

Fabien

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Sure you can....

"It's a once in a lifetime collaboration... FiveLeaf has teamed with seven of the world's greatest chefs to bring elite gourmet dining into one of your favorite places... home! Now all you have to do to experience a gourmet dinner prepared by Chefs Daniel Boulud, Mark Miller, Charlie Trotter, Thomas Keller, Antoine Westermann, Reine Sammut or Gerard Bertholon, is boil water. That's right, all you have to do is boil water and voilá you're enjoying international cuisine!"

http://shop.cuisinesolutions.com/store/index.php

[fabienpe]

There are certainly some folks who believe this, however having them in this conversation is like trying to talk about steak cookery with a radical vegan: you're trying to figure out how to get a nice char on the steak, and the vegan is screaming about how eating steak is immoral.

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I don't think this is the right analogy; in fact I find it already biased in a way I dislike. By the time intellectual property right will have gone through the kitchen doors vegans (or, as Bourdain calls them, the vegetarian Hezbollah), will have got their way through regulations and eating meat will be illegal. The analogy will probably be closer to: you're trying to figure out how to get a nice char on the steak, and the vegan is screaming about how eating steak is illegal.

I do not want a world where I have to pay royalties to be able to eat a patented recipe (that my grand mother was cooking already anyway) and which is prepared with ingredients whose genes have been patented… putting out of business my local farmer.

[fabienpe]

You cannot fedex a dish you need to go to travel to the restaurant to enjoy the food. Whether the dish was invented by X or Z, why should we care ?

Fabien

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Sure you can....

"It's a once in a lifetime collaboration... FiveLeaf has teamed with seven of the world's greatest chefs to bring elite gourmet dining into one of your favorite places... home! Now all you have to do to experience a gourmet dinner prepared by Chefs Daniel Boulud, Mark Miller, Charlie Trotter, Thomas Keller, Antoine Westermann, Reine Sammut or Gerard Bertholon, is boil water. That's right, all you have to do is boil water and voilá you're enjoying international cuisine!"

http://shop.cuisinesolutions.com/store/index.php

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That's not quite what I meant. I was thinking of a dish straight out of the kitchen... **Fresh** food. Anything else is like ready made food... Bocuse and Robuchon have been selling dishes in French supermarkets for years... those sold by the company you point out are "delivered right to your front door, frozen and ready for your enjoyment." You have to fly to New York and book Daniel's to eat Daniel's food (assuming he's in the Kitchen that night).

[joesan]

I do not want a world where I have to pay royalties to be able to eat a patented recipe (that my grand mother was cooking already anyway) and which is prepared with ingredients whose genes have been patented… putting out of business my local farmer.

Fabien this is exactly what strikes the fear of god into me. I can't see why it shouldn't worry anyone who is a food lover as opposed to an industry pundit. Although in my opinion even an industry pundit should see the damage potential in extending copyright to the culinary industry. It's insane times 10.

[sizzleteeth]

those sold by the company you point out are "delivered right to your front door, frozen and ready for your enjoyment."

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Yes... yes they are.

But you gotta admit.

$17.95 is pretty tempting...............

[ingridsf]

After reading about smoked yogurt, nitro, shrmp noodles, and patent law I am not surprisingly fantasizing about a perfectly ripe peach on a pretty plate, the only "plating" being a few leaves and a dew-drop. It's not a perfect example, but what about when the "new" thing, the great idea, isn't really new?

Is the concept of plagiarism applicable to the *decision* to re-present a forgotten, neglected or unfashionable culinary technique, etc. "I brought syllabubs back first!" Or a perfect peach served buck naked.

It may sound like splitting hairs, but I'm genuinely curious: Why is "creativity" and it's consequent credit-claiming so often bound up in ever-increasing complexity?

[nick.kokonas]

a peach occurs naturally. while it is quite complex, it is not human-made.

what you term complexity is simply "that which is made by man". And those items, any of them, require a degree of creativity - - after all, embedded in "creativity" is "create".

What is more or less complex is subjective in some cases. A mandelbrot set looks very complex to the observer, yet very simple to the mathemetician. Complexity can arise from simple things.

[ingridsf]

Yes, but all execution -- which can be complex -- begins with the idea. The creative impulse. That impulse, the "Eureka!" moment, can be be executed as an abrupt shift, such as turning your back on complex techniques and showcasing ingredients.

This isn't intended to be an argument that simplicity's "better" than complexity. I'm using the peach/shrimp noodle contrast as an extreme comparison to illustrate.

When I lived in DC in the 80's, I had a friend who ate at Restaurant Nora and was shocked at getting what she called "a plain bowl of berries," for dessert. (She thought it was pretentious.) But as I recall, RN was considered influential. Meaning others copied their decisions.

So, my question was that, while a bowl of berries is not available for patent (I hope) what do you think about "ownership" of the idea to serve them? If a chef *copies* that idea, what is the nature of the distinction between doing that versus recreating a technique and plating? In terms of ethics, not law.

Keeping in mind that history plays a part. Deciding to do that plain bowl of berries in 1988 was different than in 1888. Every culinary shift/innovation is connected to its place in time.

And for any Borges lovers out there, the story "Pierre Menard, Author of the Quioxte," is absolutely hilarious in light of this discussion.

[nick.kokonas]

The showcasing of ingredients has been done for the last 30 years. You need to read Daniel Patterson's article for the NYTimes "To The Moon, Alice?" (here

4 star restaurants should have great ingredients de rigor. You will find, in fact, that the sources for caviar, foie gras, and yes even peaches and pears, will often overlap amongst 4 star restaurants -- even those that are thousands of miles apart.

The question is, what do you do with those ingredients?

[Fat Guy]

In many disciplines, minimalism presents copyright challenges. A white canvas, a curved piece of metal, a single note . . . it's hard to describe the originality of these things. It's a shortcoming of the way most everybody thinks about art: complexity equals creativity and simplicity equals nothing.

[ingridsf]

The showcasing of ingredients has been done for the last 30 years.  You need to read Daniel Patterson's article for the NYTimes "To The Moon, Alice?" (here

4 star restaurants should have great ingredients de rigor.  You will find, in fact, that the sources for caviar, foie gras, and yes even peaches and pears, will often overlap amongst 4 star restaurants -- even those that are thousands of miles apart.

The question is, what do you do with those ingredients?

←

I've read the article but it doesn't relate to my point.

Rothko's floating panels of color are often dismissed by people who scoff, "I could do that." Aside from the fact that the works contain much subtle technique, Rothko also has claim to two other accomplishments as an artist: a vision and a decision to go forward and execute it to the best of his ability.

If they are to be culinary "arts" versus culinary "crafts," it seems to me vision is at least as important as execution. In the case of the chefs involved in this particular situation, vision (idea) is all. It sounds as though execution was done well by both. The distinction is that one was being a follower to the other's leading.

Because the vision is so important, I thought it worth looking at the issue of "ownership" in relation to it, instead of limiting the ethics to end product. My question was, How do you deal with the ethics of crediting/not crediting ideas -- whatever they are -- versus work product?

[inventolux]

I think I will stick with the patent process for now, it seems to be going well and the larger entities need a run for their money. Also, most companies are less likely to use new ideas if they dont have adequete legal protection in the first place. So many ideas are created and never used for that reason.

The copyright option is too unforgiving and fails to answer the subject of a few things:

interpretation of ingredients (my grapes come from row six and yours come from row seven and therefore mine have achieved a little more sunlight and were exposed to mushrooms at night so therefore they are "mushroomy grapes" that produce white burgundian notes which in turn creates totally different sensorial perceptions even though they are both vitus vinifera"),

ethnic and cultural diversities

new art -vs- prior art.

Which brings me to another problem, the copyright of wines paired with dishes (and any liquidious items that accompany foodstuffs)....now theres a real mell of a hess that no judge or set guidelines could provide fair and balanced interpretation for simply because I bought that row of grapes because of its uniqueness and any possible infringers cannot use my idea.

Thats a little nuts if you ask me.

There is no easy answer. But I think I will continue to file my patents for the sheer principle of it in order to protect my brethren from the evil doers who attempt to exploit the artistry of this game for their own gain and continue to destroy the fabric of creativity.

[Fat Guy]

This Daily Gullet piece, the precedent posts by Sam Mason and the companion topic "The merit of preservation: Further tales of culinary plagiarism" prompted a feature in today's Wall Street Journal, by reporter Katy McLaughlin.

Unfortunately, due to the Wall Street Journal's subscription policy, we can't provide a link to the full article. Here's the link that works for subscribers, though.

The article, titled "That Melon Tenderloin Looks Awfully Familiar...," looks at the issue of culinary copying mostly from a business-law perspective, as would be expected in the Wall Street Journal's coverage. It includes a few interesting new pieces of information.

First, it's the only public mention I've seen of the fact that Jose Andres is pursuing the Tapas Molecular Bar copying issue as a legal matter. (If you're not up to speed on this issue, you should check the other culinary plagiarism topic -- "The merit of preservation" -- for context). Some folks were arguing that chefs don't care about protecting their intellectual property. That's certainly not the case with Jose Andres:

At minibar in Washington, chef Jose Andrés is known for his avant-garde tapas menu, including foie-gras cotton candy, lobster served with a lobster broth injection and melon tenderloin. So when he came across an online review and blog about a former protege's new restaurant in Tokyo's Mandarin Oriental Hotel, he was more than a little interested to read that the menu included ... foie-gras cotton candy, lobster served with a lobster broth injection and melon tenderloin.

That's when Mr. Andrés got in touch with his lawyer. Claiming that these and other dishes being served at the hotel's Tapas Molecular Bar were his inventions, he wants the Mandarin Oriental to pay him a license fee -- or change its menu.

Second, the Journal reporter uncovered some other chefs, as well as an intellectual property lawyer, who are concerned about protecting culinary intellectual property. There's a brief account Tom Colicchio's concerns about a restaurant in Hong Kong called Craft Steak. There's a quote from Norman Van Aken about how he uses the threat of lawsuits to prevent theft of his dish concepts. And there's this piece of information:

This kind of idea-lifting has led more chefs to attempt to protect their intellectual property, according to attorney Charles Valauskas of Baniak Pine & Gannon in Chicago. Mr. Valauskas says three or four years ago he had no chef clients; now they make up more than 10% of his practice.

Third, the eGullet Society gets a nice mention, in the context of a discussion of how the web has become an essential tool in exposing culinary copying:

That's what happened three months ago on the eGullet.com Web site. Sam Mason, a pastry chef at WD-50 in New York, set off an international dust-up when he posted a link to the Web site of Interlude, a restaurant in Melbourne, Australia, and asked: "Is it me or are some of these dishes strikingly similar to a few American restaurants?" Interlude's site showed photos of such unusual fare as noodles made of shrimp and a glass tube full of eucalyptus jelly and yogurt, dishes pioneered at WD-50 and Chicago's Alinea, respectively. Interlude's chef, Robin Wickens, had worked for a week at Alinea as a stagiere, or unpaid intern, and had dined at WD-50 while visiting the U.S.

EGullet's administrators then juxtaposed Interlude's images to nearly identical ones from WD-50 and Alinea. Within a few days, restaurateurs and chefs from around the country and dozens of eGullet members added to the thread, many branding Mr. Wickens a plagiarist.

Oh, and three months into this, Wickens has now claimed to the Wall Street Journal that "'he told many patrons that the dishes had originated at the American restaurants."

[nathanm]

The WSJ article is a significant development. The Tokyo Mandarin Oriental incident isn't some struggling little restaurant - it is in a major business hotel, that is part of a major chain that relies on trademark and copyright.

If another hotel called themselves the "Mandarine Orient" or other highly similar name and used similar design scheme etc, you can bet that lawyers from the M.O. parent company would decend upon them with cease and desist letters.

In fact, many of the M. O. hotels are owned by entites other than the parent company - they license the brand name as part of a franchise or management agreement.

Given all of this it is quite ironic that one of their hotels is doing the copying of Jose Andres concepts and menus.

Getting this issue in the WSJ is an important way to expose that irony and get the major hotel companies aware of it. eGullet is a way to get chefs and foodies outraged about the copying, but as wonderful as eGullet is, it won't make many corporate CEOs or general counsels.

[Kikyo]

This is a fascinating discussion, and one my husband and I have argued over numerous times. We can't find a place in the law for this, but I think it's one that maybe diners can regulate by the force of their moral authority.

We started to talk about it due to the experience of a friend. This is nowhere near the level of Alinea and major restaurant/hotel groups, etc. But it angered me because it was a friend.

He owns a small Singapore/Malaysian food restaurant in which he prepares authentic dishes based on family recipes. All ingredients are fresh and some of his recipes are variations on what you would find on the streets in Singapore, tweaked based on his own family's traditions.

In the same neighborhood, there is a restaurant that started out as mostly southwestern and mexican, but now serves some asian dishes as well. The chef is especially reknowned for his dressings and sauces.

A man came into my friend's restaurant and began to quiz him extensively on his dishes. My friend, thinking he had an enthusiastic foodie on his hands, told him a lot about his foods, including how he made them and the ingredients he used.

The next week, a neighbour and I went in to the larger restaurant and discovered one of our friend's dishes on the menu. While the dish is a traditional Malaysian dish, our friend does not follow the traditional recipe, so it was easy to recognize that this was his, and not just a coincidence.

My husband and I got into a long, liquor-fueled argument about this. While, yes, on the one hand I think that the free exchange and spread of ideas only benefits society, I also think (1) giving credit where credit is due is nice, and (2) it's simply not cool for a larger restaurant that's in direct competition in a neighborhood with a smaller restaurant to use espionage to steal a dish and then pass it off as their own. Especially when the chef is reknowned for sauces and dressings, he will be able to add the dressing of this dish to his "famous repertoire," when he didn't, in fact, create it. To me, something like that takes away from someone else and it isn't nice.

In these days, food is not just about skilled execution, it's about creativity and chefs make a name and a career off of their style of food and innovative dishes they create. Once upon a time, it wasn't about what was being cooked, but how well it was cooked. Now chefs become entire industries in themselves and their branding and innovations affect their business.

I don't know how I feel about the business aspect entering into it so much, but when you have people like Grant Achatz creating distinctive, never-before seen forms of eating, then yes, it begins to seem like he deserves some credit for it.

When food makes you go "ooh!" before you even put it in your mouth, then it begins to leave the realm of process and enter the realm of creative works, which are protected by our intellectual property system. It's merely a matter of figuring out how these types of works fit in and what kind of protection is appropriate to grant.

[FoodMan]

Pete Wells is one of the main reasons I enjoy reading Food and Wine. His columns are always a great read, informative and witty.

The November issue features his latest column, The New Era of the Recipe Burglar, an article about this very subject we are discussing here (here is the URL if the link does not work http://www.foodandwine.com/articles/new-era-of-the-recipe-burglar). This thread, The Society and Fat Guy get some good column space as well.